The State of the Union Live Web Feed- Are you listening Seventh Circuit?

25 01 2011

The New York Times is broadcasting the State of the Union on the front page of its website as I write this. It is a lovely thing to watch, and it is a clear example of how newspapers have changed- in what they can do and how they can deliver the news.

If the Wisconsin Interscholastic Athletic Association (WIAA) was in charge of the State of the Union, the New York Times would not be web-casting the State of the Union, in it’s entirety. Instead they would be limited to two minutes worth of highlight footage, with no live blogging allowed. Sound absurd? That is exactly what WIAA claims it can do with its high school championship games. A federal judge agreed with them and the case is now under appeal. WIAA is a state actor, and if you say that WIAA can restrict coverage of its events, where is the line drawn?

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Elegant Argument for Cameras in the Supreme Court

2 07 2010

This week, the broadcast of the Elena Kagan confirmation hearings provided a stark contrast to the dramatic events actually inside the Court on Monday. What came of it is one of the most elegant arguments for cameras in the Supreme Court that I have ever read.

Check out the article here.





Being specific- and the definition of “public relations use”

9 11 2009

I don’t know if I have mentioned it before, but a contract can’t conceivably have all of the possible terms available in the universe (although some try). So if a term is missing from a contract, or if it is ambiguous, the court will try to fill in the blanks. In other words, the court will interpret any part of your contract that is unclear. For that reason, you should be clear about the important parts- like usage.

In my research, I came upon a  case which is a good example of how clear usage terms can make all the difference in a lawsuit. The case is Steve Altman Photography v. United States, 18 Cl. Ct. 267 (Cl. Ct. 1989)

Basically what happened was that the photographer and his client, a government agency, had an ongoing relationship and a subsequent dispute over a couple of different uses. Two parts of the case interested me. The photographer claimed that the agency violated his copyright twice, once by releasing an image to a magazine and again by using a (separate) photo in an annual report. Both allegations combine to make a good lesson.

“PR Use” and Release to a Magazine

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I simply hate pages with lots of text and no photos. So here. Enjoy. © 2008 Alicia Wagner Calzada

For the first allegation, the photographer had granted “public relations use” for an assignment. The agency gave a copy of a photo from the assignment to a magazine. Was the copyright violated?

First, the court, without more specific indications of the intentions of the parties (at the time of the contract), interpreted “public relations” based on the dictionary definition:

“”Public relations” refers to the “business of inducing the public to have understanding for and goodwill toward an . . . . institution.” Webster’s New Collegiate Dictionary, 932 (1975).” Id.

Second, because the photographer came up with the terms, the court construed the contract most favorably to the other party- basically, as the person drafting the terms, you have a responsibility to be clear, and you don’t get to benefit from being vague. Thus the court found that releasing the photos to the magazine fell under “public relations” use.

More Specific Usage Terms– “1982 annual report”

In the same case the same photographer had also licensed some photos for an annual report, specifically “to be used in 1982 annual report and for P.R. release.

Because these terms were more specific, when the agency use the images in the annual report for a different year (1983), the court ruled that there was a copyright infringement.

So you see how being specific made all of the difference. Imagine if the client had used one of the photos from the first instance in an annual report. The court could have used the second contract as proof that annual report use was not included in public relations use. Or it could have decided that the absence of a specific limitation meant that there was no limitation.

Moral of the story, be specific, lest someone else is left to read your mind. After all, if you end up having a judge interpret your contract, you have lost the client.

If you use a general license, list the possible uses. If you need help filling in the blanks, a great resource is PLUS (Picture Licensing Universal System). They have an awesome feature called the “License Generator” which you can use to fill in the usage section of your contract. Try It!

Happy Shooting.

-A






Virgin Mobile cased dismissed from Texas

24 01 2009

You may remember the case of the girl whose photo was posted on flickr and then used in an advertisement for Virgin Mobile in Australia.

Just a quick note to report that the United States District Court for the Northern District of Texas dismissed the case against Virgin Australia without prejudice (meaning it can be brought in another court).

The problem with the case- jurisdiction. In order for a court to be able to impose a judgment against a party (a person or company), it must have personal jurisdiction over that entity. It can get this easily if the person is based in that courts area of jurisdiction (called general jurisdiction). It can also get this if the person conducts business or commits a tort in the jurisdiction, called “minimum contacts” (or if they consent).

In this case, Virgin Australia didn’t have either, so the court decided that it didn’t have authority over the company.

It should be noted that Virgin USA and Virgin Australia are completely separate entities, having no connections, according to the footnotes in the case. Virgin USA was also sued, but they were dropped from the suit and the only defendant left was Virgin Australia.

As the internet and the Web 2.0 sharing movement takes off, jurisdiction is going to be an important issue. Typically, if someone hurts you, it is physical, and in person. They have to be in your area (and thus in your jurisdiction) to hurt you. But this case is a perfect example of how someone in Texas was hurt by someone in Australia. Now the person who was injured will probably have to go to Australia to bring her case. And a girl in Texas is now forced to hire counsel in Australia, and possibly go to Australia to get relief for her injury.

If you are interested, the case is: Chang v. Virgin Mobile USA, LLC, 2009 U.S. Dist. LEXIS 3051 (N.D. Tex. Jan. 16, 2009)





Contract basics- Damages

14 07 2008

When a contract is breached, there are consequences, generally called damages.

How you write your contract can greatly affect how those consequences affect you. But first, you need to understand the types of damages.

A court will generally take one of three approaches to a breach of contract case, all aimed at providing relief for the non-breaching party (the person who did not break their promise).

  1. Expectation Damages– to put the non-breaching party in the position it would be if the other party had fulfilled it’s obligation.
  2. Reliance Damages– to put the non-breaching party in the position it was in if the contract had never been made- generally reimburses costs from relying on the fact that the contract was in place.
  3. Restitution Damages– restores to the party, benefits conferred on the other.

Applied to photography contracts, this might look like the following:

If a photographer provides photos and the client doesn’t pay:

  • Expectation damages would be the money the photographer expected to earn (easy enough).
  • Reliance damages would be the money the photographer spent on expenses to take the photo (probably not a good choice in this scenario).
  • Restitution damages would be the return of the photos (but if they are already published, this is also not a good option)

If a client hires a photographer and the photographer doesn’t follow through:

  • Expectation damages might include the cost of hiring another photographer to do the work. If Photographer 1 who breached the contract, was replaced by a more expensive photographer, Photog 1 wouldn’t be liable for the entire cost of Photographer 2, but rather the difference in the cost between the two. Occasionally, on the People’s Court, a wily bride will try to claim expectation damages that includes the entire cost of restaging the wedding because she doesn’t like the photos. That is usually not allowed (but would fall under expectation damages).
  • Reliance damages. If a shoot was canceled because of the photographers breach, reliance damages might include any costs related to setting up of the shoot that couldn’t be recovered, such as location fees, talent, travel of the art director, you name it. In an advertising shoot, this could really add up.
  • Restitution damages would simply be the amount paid, including expenses and other benefits, to the photographer until the cancellation.

This is an overview, so there are other factors involved. For example, the non-breaching party would have to attempt to mitigate the damages before getting anything. This is called mitigation of damages. In addition, terms that you write into your contract can limit the damages available. This is called remedy limitations (or if it is a specific amount, liquidated damages). But such limitations have to be reasonable.

I have never had to cancel a photo shoot or had a client reject my work. But things happen, accidents happen, people get sick. And photography is subjective. One clients’s “great job” might be another client’s “this is horrible.”

So in order to prevent the possibility of high expectation or reliance damages, I have written a limitation of damages clause into my contract.

It says this:

“The liability of Photographer in relation to any assignment, in any event, shall be limited to the refund of total fee paid to her for the assignment in question.”

Keep in mind that a breach of contract, on either side, is never meant to be a windfall. In fact, courts specifically try to keep it from becoming that. So you can almost never get emotional damages or punitive damages for a breach of contract, unless it is accompanied by a tort like fraud or negligence. You can only get reimbursed for what you lost. Thus it is always best to settle your differences outside of court.